Tuesday, February 07, 2017

Sooner or later, they will come for us

Upon receipt of the designated analyst’s certificates and the samples
analysed in accordance with the foregoing subsections the authorized
officers shall, where the drug is found to be a narcotic drug or
psychotropic substance within the meaning of this Act, arrange with a
magistrate for the immediate destruction by such means as shall be
deemed to be appropriate of the whole amount seized (less the sample or
samples taken as evidence at any subsequent trial or any contemplated
trial particularly where the accused person’s identity is not yet known
or the accused person is outside the jurisdiction of Kenya at the time
of taking such samples).—section 74A(3), Narcotic Drugs and Psychotropic Substances (Control) Act, 1994

Where a person is convicted of an offence under this Act and any
narcotic drug or psychotropic substance, motor vehicle, aircraft, ship,
carriage or other conveyance or any other article or thing, liable to
forfeiture to the Government under this Act in respect of that offence
has been seized under this Act, the court convicting him may, in
addition to any other penalty imposed on him, order that the narcotic
drug, psychotropic substance, motor vehicle, aircraft, ship, carriage or
other conveyance or other article or thing be condemned and forfeited
to the Government.—section 78, Narcotic Drugs and Psychotropic Substances (Control) Act, 1994

The above are two provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, dealing with the disposal of drugs that have been seized by the Government and the vehicles in which the drugs were found. In 2014 and 2015, the Government destroyed ships in which drugs had been seized. According to the Daily Nation of the 29th August 2014,

The MV Al Noor was destroyed 33km from the Mombasa Port and sunk to a
depth of 329 metres with 370.8kg of heroin. The initial cargo was
373.8kg, but three kilos were taken to the government chemist for
further analysis.

[The] Kenya Defence Forces have blown up a yacht that was found trying to
sneak in 7.6 kilogrammes of heroin worth Sh22 million off the Kenyan
coast.

In the first case, the destruction of the MV Al Noor, "President Uhuru Kenyatta supervised the blowing up of [a] ship" while in the second case, "[the] Interior Cabinet Secretary Joseph Nkaissery, Chief of Defence Forces
General Samson Mwathethe, Inspector-General of Police Joseph Boinnet and
Kenya Navy Commander Major-General Levi Mghalu witnessed the
destruction." In both cases, the prosecution of the suspected drugs traffickers was yet to me completed.

Few of us have any sympathy with those who seek to profit from the utter ruin and destruction caused by narcotics, including the traffickers and distributors of narcotics. If we had the choice, we would blow up their ships with the traffickers on board. We recoil in horror at the images of the shattered souls of drugs users that we occasionally get to see on TV or on the streets, pathetic in their brokenness, devoid of the spark that even dreary lives cannot snuff out unless all hope is gone. We hate drugs. We hate drugs traffickers. Because of our hatred of both, we are willing to turn a blind eye when the law is bent "slightly" in the Government's campaign against drugs traffickers.

What began as an extreme solution to an extreme problem (the destruction of private property, i.e. the blowing up of ships) is now morphing into a campaign of the violation of the rights and fundamental freedoms of Kenyan citizens as demonstrated by the rendition of the Akasha brothers to the United States by agents of the US Drug Enforcement Administration. According to the Business Daily, the brothers, suspected of being drugs traffickers, had been "fighting their extradition to the USA for years".

Few doubt that the brothers were the innocents that their lawyer and mother tried to portray them as; they were, after all, the sons of the murdered drugs trafficking maestro, Ibrahim Akasha, and had been his loyal assistants in the trade. Regardless of what our certainties are about their guilt or innocence, the Government of Kenya had not secured any convictions against the brothers and was yet to persuade a magistrate to authorise their extradition to the USA. Thus, the admission by the Inspector-General of Police that it was the National Police Service that arrested the brothers and, by implication, it is the National Police Service that handed the brothers over to US authorities for extradition outside Kenya.

The most succinct definition of the "rule of law" is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. The destruction of the drugs-trafficking ships before their owners were convicted of drugs trafficking was an arbitrary exercise of power. The extradition of the Akasha brothers was an arbitrary exercise of power. That this power was exercised against execrable human beings is neither here nor there: it violated the national values and principles of governance enshrined in article 10 and violated the rights and fundamental freedoms of the suspects.

Almost always the Government runs out of bad people to target as enemies of the people and starts to focus its attention on the innocent. For now, our interests and those of the Government are aligned in the campaign against drugs, drugs trafficking and drugs use. At some point, our interests will diverge and we will become the targets of the Government, whether we are innocent or not.